Crawford v. Thomason , 53 Tex. Civ. App. 561 ( 1909 )

On the 24th day of March, 1906, a writ of sequestration was sued out by plaintiff in the suit of S. L. Robertson against Oscar E. Oates, T. G. Carney, Z. B. Thomason and E. P. Thomason to recover a portion of lot six in block twenty-five in the town of Haskell, consisting of a strip twelve inches in width and one hundred and forty feet in length, adjoining lot five lying south of lot six. That was not the suit now before us. The writ of sequestration commanded the sheriff of Haskell County not only to take possession of the strip sued for, but also, in effect, to remove all houses and other encumbrances therefrom. At that time a store house was situated principally on lot five, but also covered the strip sued for. This house consisted of two sections joined together. Defendants Z. B. and E. P. Thomason were in possession of the house and also of a stock of groceries therein, and were engaged in the business of grocery merchants. One section of the building was owned by them and they had leased the other section. Acting under this writ J. W. Collins, sheriff of Haskell County, at the instance of plaintiff A. L. Robertson and over objections of the persons in charge of said house and goods, after levying on the disputed strip of land, removed the house and its contents therefrom to a place thirty feet west and a short distance south of its former location. The actual work of so doing was performed at the instance of the sheriff by Frank Crawford and others whom he had employed to assist him. To properly move the store house it was necessary to separate the two sections thereof and move them separately, but after being moved the two sections were again joined together as before. The goods were not taken from the house, and before moving it the sheriff disclaimed to the persons in charge any desire to take possession of the goods or to interfere with defendants' possession thereof, stating that his only purpose was to remove the house from the strip of land sued for by Robertson, and that he was acting solely under and by virtue of the writ of sequestration which he then had in his possession. When the work of moving the house was begun the persons in charge of the store left it, taking their books of account, and did not return at any time during the progress of the work. After the house was moved and the two sections readjusted the sheriff notified the defendant Thomasons in writing that he had moved the house thirty feet west and a short distance south on lot five; that the house and contents were then uninjured and in as good condition as they were when the sheriff first began to move the house, and requested them to look after the property to prevent possible damage thereto. But the defendants refused to take possession of the property or to have aught to do with it, and the house and contents were afterwards destroyed by fire.

The house was moved by Frank Crawford and his employes under a contract between himself and the sheriff who hired the work done. Crawford testified that before closing the contract with the sheriff, E. P. Thomason, defendant in possession of the house, agreed with him that the house might be moved, but the undisputed testimony shows that afterwards, when Crawford returned to begin work, the defendants then objected, and no evidence was introduced to show that they ever thereafter consented that the house should be moved. The evidence further shows that at least three or four days were consumed in moving the house. Thereafter the suit was tried and judgment was rendered in favor of plaintiff S. L. Robertson against the defendants for the title and possession of the strip of land sued for. Upon appeal by defendants this court affirmed the judgment of the court below, but held that there was no authority for the issuance of a writ of sequestration to move a house from land in advance of a trial, and that the writ of sequestration so issued should have been quashed by the trial court upon the motion made by defendants praying for such an order.

The suit now before us for consideration was for conversion, instituted in the District Court of Jones County by appellees against appellants to recover the value of the goods and store so moved by the sheriff and his employes, and also for exemplary damages. A judgment was rendered in favor of the plaintiffs against defendants S. L. Robertson, Frank Crawford, J. W. Collins, John Crawford, F. G. Alexander, J. S. Keister, and A. C. Foster for actual damages in the sum of twenty-one hundred and fifty dollars and twenty-four cents, and against S. L. Robertson and J. W. Collins for one thousand dollars exemplary damages, the judgment against Alexander, Keister and Foster being against them as sureties on the sheriff's official bond. The judgment was in favor of Oscar E. Oates, Sam Crawford, W. H. Crawford, and John E. Robertson, who were also defendants in the suit. The actual damages so awarded were the market values of the stock of goods and that section of the house that was owned by appellants. All the defendants cast in the suit have appealed to this court and the contention which is made the basis of several assignments of error is that under the facts which have been above set out appellants were not guilty of a conversion of appellees' property.

Mr. Cooley in his work on Torts (2d ed.), page 524, defines conversion in the following language: "Any distinct act of dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it, is a conversion." This definition seems to be in accord with the weight of authorities on the subject of conversion, which further hold that the wrongdoer can not question plaintiff's title or right of possession, nor defeat recovery by showing that the taking was in good faith and under a mistake. 28 Amer. Eng. Enc. Law (2d ed.), 679, 681, 691, 693, 674; First Nat. Bank v. Brown,85 Tex. 80; Vickery v. Crawford, 93 Tex. 373 [93 Tex. 373]; Hofschulte v. Panhandle Hdw. Co.,50 S.W. 608. The writ of sequestration under which the sheriff acted in moving appellees' store house conferring no lawful authority for such act, the situation of all parties acting with him is the same as if no writ of sequestration had ever issued, so far as affects appellees' claim for actual damages. While the sheriff distinctly and repeatedly disclaimed any purpose to take charge of appellees' goods situated in the house, and expressly stated that his only purpose was to move the house from the strip of land claimed by appellants in the suit, we are yet constrained to hold that his acts in pulling apart the two sections of the house and moving it with all its contents thirty feet back from its former location, thereby necessarily interrupting appellees' business, was the exercise of dominion over the property inconsistent with appellees' title, and substantially an ouster of plaintiffs from the possession thereof. Title to the goods and one section of the house was vested in appellees, and they also held the other section of the house under lease. This of course gave them an unqualified right of possession to all the property. That the act of the appellants in moving the store house without the consent and over the protests of appellees was a wrongful act, we think is settled by our Supreme Court in the case of Sinclair v. Stanley, reported in64 Tex. 67, also in 69 Tex. 718.

In that case the Galveston City Railroad Company claimed title to lot 8 in N.E. quarter of out-lot 141, city of Galveston, and had built its road through another portion of said N.E. quarter. Stanley had leased the lot from Thacher Company and hauled lumber on the ground with which he intended to build a house. Without the knowledge or consent of Stanley, agents of the railway company removed the lumber and hauled posts on the ground to be used in fencing the land. During the following night Stanley erected a house on the lot, the house having been previously framed and ready to be erected. Later agents of the company tore down and removed the house and its contents upon other land, notifying Stanley of its whereabouts and offering to carry it to any place Stanley would select. The offer was refused and Stanley instituted suit against the company for damages done to the house and contents by the company. In that suit the Supreme Court held that the title to the lot was vested in the company, but that the removal of the house was wrongful, and in the first report of the case,64 Tex. 74, the following language is used: "To say that in this state of case the appellants, although representing the true owner of the lot as subsequently determined by the courts, could forcibly eject the appellee from the premises, destroying his house and other property found in it, is to assert a proposition which, we think, has no foundation in law." And again on the same page: "A legal and peaceable remedy was open to the railroad company, and there was no necessity or propriety in its officers taking the law into their own hands and expelling by force one who had not disturbed their actual occupancy, and the appellants should answer in damages for having committed a trespass instead of pursuing the remedies provided by law." Again the court says on the second appeal of that case, 69 Tex. 727: "Adequate provision has been made in our laws for the recovery of possession of property which has been forcibly taken or forcibly detained, and, as said in Warren v. Kelly, 17 Tex. 551, if one holding the title to land was permitted, by himself or his agent, with force and arms to dispossess one in peaceable possession, the consequences would be breaches of the peace, oppression and bloodshed, and trial by the use of the bowie knife and revolver would be resorted to instead of the quiet and peaceable remedy afforded by the due course of law in the judicial tribunals of the country." While in that suit the wrongs alleged were by the plaintiff treated as a trespass and damages were asked on that theory, it is well settled by the authorities that when a wrong complained of amounts to a conversion the injured party has the right to so treat it and to sue for the value of the property so taken, and also to refuse to accept it when the wrongdoer offers to return it. Weaver v. Ashcroft, 50 Tex. 444; Hofschulte v. Panhandle Hardware Co., 50 S.W. 608.

Upon the trial appellants offered in evidence certified copies of plaintiff's petition, defendants' answer and the judgment of the court in the District Court of Haskell County, wherein Oscar E. Oates sued and recovered from Z. B. Thomason and E. P. Thomason the title and possession of lot five prior to the occasion in controversy in this suit. This evidence was offered to show that the Thomasons were trespassers on lot five, and therefore pertinent upon the issue of exemplary damages, and to the action of the court in excluding the evidence appellants have assigned error. We think there was no error in the ruling. The house was never moved from lot five, and the sheriff never claimed at the time of moving nor in his testimony that his acts were based upon any belief on his part that under the judgment so offered in evidence appellants had no lawful right to occupy lot five, but on the contrary he claimed that his only purpose was to move the house from the strip of land described in the writ, in obedience to commands contained in the writ. O'Brien v. Hilburn, 22 Tex. 624.

We also approve the ruling of the court in excluding the offered testimony of witnesses Sutherlin, a barber, and Cason, a hardware merchant, to the effect that they had moved their houses, situated in the same block with the same front, back on a line with the house in question after it was moved, and that there was no material difference in the volume of their business after they moved. The market value of the property was the only measure of actual damages submitted to the jury, and we are unable to perceive how the evidence could be relevant to the issue of exemplary damages.

No doubt appellants believed in good faith that the writ of sequestration conferred the right to move the house, but that is no valid defense to the charge that they are guilty of a conversion of appellees' property. Cooley on Torts (2d ed.), pp. 519 and 529.

Appellee G. W. Thomason testified that when he protested against the house being moved the sheriff said, "Well, by G —, if you don't believe we are going to move you just watch and we will show you;" and that he made the further remark, "By G —, they had a bond that would cover several such stocks of goods as that, some three or four or five if I doubted it." This witness further testified that when he told the Crawford boys, "Go away and let this building alone; don't move it," Sheriff Collins walked up and said to witness, "Go on away from here and let these boys alone; let them move the house." This testimony was contradicted by the testimony of the sheriff, but the jury were the exclusive judges of the credibility of the witnesses and we can not say that the verdict for exemplary damages was not warranted by the evidence. (Land v. Klein, 21 Texas Civ. App. 3[21 Tex. Civ. App. 3]; 28 Amer. Eng. Enc. (2d ed.), 610 and 611.)

If there was any error in the abstract definition of the term "conversion" given in the court's charge, we think the same was cured in the instruction which followed it, wherein the jury were told the facts which they must believe to have been proven in order to find that the defendants were guilty of a conversion. At all events, the defendants' acts in moving plaintiffs' property, as above recited, were proven beyond controversy and we think they necessarily show a conversion, thus rendering harmless any error in the court's charge defining the term "conversion."

Finding no error in the judgment, it is affirmed.

Affirmed.

Writ of error refused.